Can you get a DUI for bumping the gear shift while drunk? Not any more
Driving drunk is against the law. That's obvious enough.
It's perhaps less obvious, but no less true, that sleeping at the wheel while drunk is against the law.
DUI laws are written in such a manner that prosecutors can charge people who are passed out behind the wheel of a car - running or not - with the same crime as a person driving that car down the road.
It's called "actual physical control," and courts have long held that charging drunks who aren't driving but could be is an acceptable way to protect public safety.
It's a preventative measure. Minnehaha County State's Attorney Aaron McGowan once told me that any time a drunk person is in the driver's seat with access to the keys, "you have a dangerous situation."
In a split decision issued Thursday, though, the South Dakota Supreme Court ruled that prosecutors in McCook County stretched the "actual physical control" language a bit too far when they charged a man who bumped a gear shift.
Don Nekolite was at a dance and drinking with his girlfriend on the night he was charged. He and his girlfriend, who was the designated driver, both testified that he'd reached into his truck to grab a cigarette and bumped the gear shift to put the truck in neutral. The truck rolled into another vehicle, which brought police to the scene.
One officer said Nekolite was planning to drive and told him so, but the magistrate court rejected that assertion based on the later testimony of Nekolite and his girlfriend. The court found him guilty of DUI anyway, based on the "actual physical control" language of the DUI statute.
Nekolite appealed to the circuit court and lost, but the Supreme Court reversed the decision.
Justice Steven Zinter, writing for the majority in the 3-2 decision, said there are several things to prove before a person can be convicted based on actual physical control.
"The State must prove that: (1) the defendant's vehicle was operable; (2) the defendant was in a position to manipulate one or more of the controls of the vehicle that cause it to move or affect its movement in some manner or direction; and (3) the defendant's control was such as would enable the defendant to actually operate the vehicle in the usual and ordinary manner."
Nekolite had an operable vehicle and did "manipulate" the controls when he drunkenly fumbled around the cab of his pickup searching for a smoke, but he wasn't able to control the truck in a "usual and ordinary manner."
Justice Lori Wilbur, who it should be noted was the first judge to operate a DUI Court in South Dakota prior to her ascent to the high court bench, wrote a dissent.
Wilbur's argument was that the legislature's "actual physical control" statute was designed to give deference to law enforcement in cases where a drunk person causes a vehicle to move.
The three-prong test comes from a pattern jury instruction, WIlbur wrote, not the law. The legislature hasn't codified the jury instruction, so the actual physical control statute ought to be interpreted to cast a wide net.
"Interpreting our statute broadly and applying it to the facts of this case, Nekolite's control of the gear shift constitutes actual physical control of the vehicle," Wilbur wrote.
Now, Mr. Nekolite might not have been charged at all if the arresting officer weren't suspicious of his intentions.The state's version of events clearly referenced the alleged admission by Nekolite that he planned to drive.
Would the officer have gone through the trouble of booking him for DUI otherwise? Perhaps, but it seems far more likely that the officer just didn't buy the bumped-gear scenario.
Either way, the dispute put the issue in front of the state Supreme Court and narrowed the scope of actual physical control, if only slightly. The decision could offer defense attorneys a strong argument the next time they're presented with a client charged with a DUI for sleeping it off in the back seat of a car or in the bed of a pickup truck.
In those cases, the officer can never be sure if the person who swears up and down that they only came to the car to sleep it off and absolutely, positively did not drive drunk is telling the truth. Sometimes they are. Sometimes they aren't.
Until Thursday, police in South Dakota might have felt that they had a little more leeway to charge them with a DUI. Today, they don't have as much cover.
Here's the full decision.